When I wrote about the Grant v. Trump copyright case on October 1, I was wrong about one thing: that Team Trump would quickly settle the matter as a relative storm in a teacup within the legal tornadoes swirling around the ex-president. But I should know better. Because of course the law works in mysterious ways in Trump’s mind, including one important theory he continues to advance against all claims civil and criminal—namely, that having attained the presidency, he is henceforth immunized against all liability for the rest of his life.
After failing to obtain a dismissal in musician Eddy Grant’s copyright infringement claim against Trump and the campaign, Trump’s answer filed on October 18 asserts five affirmative defenses including “absolute presidential immunity.” Yes, Donald Trump throws this expression around like he’s flinging holy water at vampires because he has never quite shown that he understands the distinction between the office and the office holder. In a Lawfare article explaining why the former president should not be immunized against civil suits arising out of the Jan. 6 insurrection, Dayna Zolle writes, “The Supreme Court has stated that the president’s power to act ‘must stem either from an act of Congress or from the Constitution itself.’”
As a matter of law, there is a separation between the official duties of an incumbent and his reelection campaign. West Wing fans may remember that Sorkin’s President Bartlett was such a stickler for this rule that he refused to call potential campaign donors from within the Oval Office. And although Trump has consistently tried to erase the line between campaigning and governing, he has no reason to expect that any court will be persuaded that the use of “Electric Avenue” by Trump for President was encompassed within the “outer perimeter” of the official duties of then President Trump.
Nevertheless, the fact that the absolute immunity defense was even presented in Grant reprises the discussion I began in my first post about this case, when I asked whether unlicensed uses of works for political messages should tilt away from fair use under factor one in deference to the copyright owner’s speech rights. Because regardless of the legal veil that exists between a campaign and an office holder, that separation is muddier in the lingua franca of politics in general. And this is one reason why Trump in particular provoked an unprecedented number of musical artists to demand that he not use their songs at his rallies.
Although Trump is wrong as a matter of law about his eternal immunity, it is true that campaigns are about official policy, even if they are not official acts—especially campaigns by incumbents. Thus, to the extent that a Trump 2020 rally was an extension of the administration, that is all the more reason why songwriters or artists have an inherent moral right to assert their non-participation, if that’s how they feel. As Mick Jagger told the BBC about demanding that Trump stop using “You Can’t Always Get What You Want,” to close rallies, “It’s a funny song for a play-out song—a drowsy ballad about drugs in Chelsea. It’s kind of weird.”
The weirdness of Donald Trump notwithstanding, moral rights is a subject of IP law, which is more explicitly codified in various copyright statutes around the world than in the U.S. The one exception is the section of the American statute called VARA (Visual Artists Rights Act), which includes certain prohibitions against destruction of visual works and/or uses of those works in ways that may harm the artist’s reputation.
Moral rights encompass those aspects of copyright which are intertwined with the author’s identity, and although the U.S. is not strictly a moral rights jurisdiction, I would argue that the essence of those protections is baked into the exclusive rights under §106 because the author does not need a reason to reject a license to use a work. Simply disapproving of a proposed use—including the possibility that the author hates the breathing guts of a political figure—is sufficient grounds to deny the would-be user a license. And the rightsholder need not explain himself.
Further, if Trump were correct that campaigning is coextensive with governing, then unlicensed uses of works would be tantamount to compelled speech—at least in principle—because the campaign related conduct would meet the standard of state action necessary to implicate the First Amendment. Whether the use of music at a rally or synched with a video would be considered using the speech of the author(s) without permission is arguably a case-by-case consideration. But music is an especially powerful medium in this regard. When a sound recording is played at an event to animate a crowd into action which the artist passionately opposes, the offense may be deeply personal and has nothing to do with the economic utility of the artist’s copyrights.
So, I doubt Trump’s immunity answer in this case will do him any good, and perhaps the campaign will ultimately settle with Grant since the damage award would still be a tiny slice of the Trump defense fund pie chart. But even the folly of the argument contains a little slice of truth—that the boundary between campaign and official conduct by an elected official is often hazy and semipermeable. But if that is relevant at all, it is grounds to afford authors greater, not lesser, protection against involuntary participation through uses of their expressive works for political purposes.